United States v. Cadden

MEMORANDUM AND ORDER ON GOVERNMENT'S MOTION IN
LIMINE TO ADMIT VICTIM EVIDENCE THROUGH SUMMARY WITNESS [DKT
#933]

RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.

The
motion is ALLOWED, in part. The government seeks to
admit through Dr. Ann Burgess, a doctor of nursing contracted
by the government as an expert medical assistant, to present
autopsy records and death certificates confirming the cause
of death of the remaining seventeen alleged murder victims in
the case as a means of expediting this prolonged trial (now
about to enter its third month).[1] The issue of cause of death
is one that, as the government notes, has been uncontested by
the defendant from the outset of the case. For decidedly
unconvincing reasons, the defendant opposes the motion to
allow Dr. Burgess to testify in summary fashion as to the
records of death. The government also seeks to present a
summary chart showing the medical facilities where patients
who (according to the Centers for Disease Control tabulation)
contracted both lethal and non-lethal forms of fungal
meningitis were injected with vials from the three allegedly
contaminated lots of methylprednisolone acetate shipped by
New England Compounding Company (NECC). This raises an issue
of more serious concern.

It may
be useful to begin with some basic evidentiary principles. It
has long been the practice in state and federal courts that a
witness familiar with the underlying documents may present
complex records that cannot be conveniently examined in court
in a summary form (typically by way of a chart). See
Fed. R. Evid § 1006; United States v. Bray, 139
F.3d 1104, 1113 (6th Cir. 1998) (charts summarizing daily
stamp transactions between two postal clerks engaged in an
embezzlement scheme); State v. Lord, 822 P.2d 177,
193-196 (Wash. 1991) (charts summarizing complex forensic
evidence in a rape murder trial); United States v.
Alicea-Cardoza, 132 F.3d 1, 4 (1st Cir. 1997) (tabular
listing of drug suspect's pager messages); United
States v. Symonevich, 688 F.3d 12, 22-23 (1st Cir. 2012)
(charts comparing defendant's heroin purchases with those
of the other 127 customers of a drug ring, offered to rebut
any inference of personal use). Summaries of complex
testimony are also admissible. See Commonwealth v.
Guy, 454 Mass. 440, 446 & n.5 (2009) (notebooks
summarizing complicated DNA testimony). Cf. United States
v. Johnson, 54 F.3d 1150, 1157-1161 (4th Cir. 1995)
(summary testimony and charts admitted in a complex drug
trial as a permissible “pedagogical device” under
Fed.R.Evid. 611(a)); State v. Olson, 579 N.W.2d 802,
806 (Wis. App. 1998) (same, “check-off list”
summarizing testimony of victims in a complex child
molestation case).

By its
own terms, Rule 1006 does not require that the underlying
evidence be actually admitted at trial, although the court
may require the proponent to show that the evidence is
admissible and accurately summarized in the chart. United
States v. Milkiewicz, 470 F.3d 390, 396 (1st Cir.
2006).[2]Compare Commonwealth v. Wood, 90
Mass.App.Ct. 271, 279-280 (2016) (error to admit a composite
PowerPoint organized less as a summary of the underlying
exhibits than as a selective tableau imposing the
Commonwealth's gloss on the evidence). While a Rule 1006
chart is typically admitted in evidence, a Rule 611(a)
pedagogical device distilling and simplifying complex data to
aid counsel's argument to the court or jury usually is
not. Milkiewicz, 470 F.3d at 397. The difference, as
explained in Bray, 139 F.3d at 1111, is that charts
admitted under Rule 1006 are explicitly intended to reflect
the contents of the documents they summarize and typically
are substitutes in evidence for the voluminous originals.
Rule 611(a) pedagogical aids, on the other hand, are intended
to illustrate or clarify a party's position and may
permissibly by captions or method of organization promote the
inferences and conclusions the proponent seeks to draw from
the evidence.

Also
pertinent is the command of the Federal Rules of Evidence
that its provisions are to “be construed so as to . . .
eliminate unjustifiable expense and delay.” Fed.R.Evid.
102. Specifically, the court has the power to “exercise
reasonable control over the mode and order of examining
witnesses and presenting evidence so as to . . . avoid
wasting time, ” Fed.R.Evid. 611(a)(2), and to exclude
even relevant evidence on the basis of wasted time or the
needless presentation of cumulative evidence, Fed.R.Evid.
403.

As
earlier indicated, there is no good reason to refuse
permission to the government to expedite the trial by
allowing Dr. Burgess to give summary testimony as to the
cause of death of the remaining seventeen victims. The
Summary of Shipments Chart (Exhibit A attached to the
government's motion) is more problematic. As also
indicated, and as the government implicitly admits, Exhibit A
falls more on the Rule 611 side of the spectrum than that of
Rule 1006.[3] To the extent that the Chart in its first
nine columns identifies clinics that ordered
methylprednisolone acetate from NECC, specifies the date of
the order, the quantity, the price, the date of the shipment,
and the lot number assigned by NECC - all of which are based
on NECC's own business records - the chart falls well
within the ambit of Rule 1006 and would be admissible on the
proffered testimony of Special Agent Ridgely. The problem
lies with column 10, which purports to identify by name
patients who were allegedly injected with methylprednisolone
acetate from one of the three lots and who contracted fungal
meningitis as a result. Evidence supporting this conclusion
could not be based on any records of NECC, but necessarily on
those of the clinics involved, and as defendant fairly notes,
the “presumptive diagnosis” of the Centers for
Disease Control (CDC).

ORDER

For the
foregoing reasons, the motion to admit the summary
cause-of-death testimony of Dr. Burgess is ALLOWED.
The motion to admit the Summary of Shipments Chart is
ALLOWED in part and DENIED in part as
indicated in the above Memorandum.[4]

SO
ORDERED.

---------

Notes:

[1] The government also seeks to admit a
photograph of each of the victims, something the court has
previously sanctioned as means of “tell[ing] the jury
‘something of the person whose life [has] been lost in
order to humanize the proceedings.'”
Commonwealth v. Martinez, 476 Mass. 186, 193 (2017),
quoting Commonwealth v. Holliday, 450 Mass. 794, 816
(2008). Defendant misstates the court's February 5, 2017
Order excluding further victim-impact testimony as unduly
prejudicial. What the court excluded was further victim
life-story testimony by family members. It did not revise its
orders permitting the government to offer evidence proving
the cause of death of each of the named victims by way of
autopsy reports and death certificates (which as the
government correctly notes are business and/or public records
that do not raise Confrontation Clause concerns). Nor did it
revise its Order permitting the introduction of a photograph
of each of the victims.

[2] By the same token, a summary chart is
not rendered inadmissible by the fact that the underlying
documents have been admitted, in whole or in part, in
evidence. Id. at 396.

[3] As the government states on page 5 of
its supporting memorandum, the chart is intended to prove
that all three of the suspect lots of methylprednisolone
acetate were contaminated, a point that the government admits
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.